Luce v. Town of Campbell Wisconsin
Luce v. Town of Campbell Wisconsin
Opinion of the Court
Plaintiffs Gregory Luce and Nicholas Newman brought this suit under
On remand, both parties moved for summary judgment. (Dkt. ##170, 175.) Defendant argues that the town ordinance is narrowly tailored to promote traffic safety. Plaintiffs argue that: (1) defendant's motion for summary judgment rests on inadmissible declarations; (2) the information asserted in these declarations is contradictory or unreliable and, therefore, should be given no evidentiary weight; and (3) the city ordinance is not narrowly tailored. For the reasons that follow, the court agrees *848with plaintiffs that defendant has not met its burden of demonstrating that the 100-foot buffer zone is narrowly tailored to serve a significant government interest. Accordingly, the court will grant plaintiffs' motion for summary judgment and enjoin the enforcement of the buffer zone.
UNDISPUTED FACTS
A. Background
Plaintiffs Gregory Luce and Nicholas Newman are residents of La Crosse County and members of the local Tea Party. They sought to share their political views by demonstrating on a pedestrian bridge spanning interstate 1-90 in the Town of Campbell, Wisconsin. In August and September 2013, plaintiffs and their affiliates began placing political signs and banners on the overpass, displaying messages such as "HONK TO IMPEACH OBAMA."
In response, the Town's council enacted an ordinance forbidding all signs, flags and banners on any of the Town's three highway overpasses or within 100 feet of the structures. The ordinance provides in pertinent part:
No person shall display, place, erect, post, maintain, install, affix, or carry any sign, flags, banners, pennants, streamers, balloons or any other similar item:
(1) on any portion of a vehicular or pedestrian bridge or overpass that passes over a freeway or expressway as defined inWis. Stat. § 346.57 , or a controlled access highway as defined inWis. Stat. § 990.01 , when such highway has a speed limit of more than 40 miles per hour, whether the highway is under the jurisdiction of the federal, state or local government, provided that such sign is visible from such freeway , expressway or controlled access highway.
(2) within one hundred (100) feet of any portion of a vehicular or pedestrian bridge or overpass that passes over a freeway or expressway as defined inWis. Stat. § 346.57 , or a controlled access highway as defined inWis. Stat. § 990.01 , when such highway has speed limit of more than 40 miles per hour, whether the highway is under the jurisdiction of the federal, state or local government, provided that such sign is visible from such freeway, expressway or controlled access highway.
(Def.'s PFOFs (dkt. #64) ¶ 113 (emphasis added).) Local law enforcement began issuing citations to protestors who were displaying signs and flying flags on the bridge. The protestors responded by taking video recordings of police officers who were issuing citations and threatening law enforcement.
This court entered summary judgment in favor of defendants, concluding that: (1) the ordinance was content neutral; (2) it was narrowly tailored to serve the significant government interest of traffic safety; and (3) it left open alternative channels of communication. (6/16/15 Op. & Order (dkt. #127)). On appeal, the Seventh Circuit agreed with conclusions (1) and (3), but disagreed in part with conclusion (2) to the extent that this court found the one-hundred foot buffer zone described in 912.2(2) was narrowly tailored to serve a significant government interest. Luce ,
*849The ordinance forbids a small "For Sale" sign on the front lawn of any house near the ends of the overpasses.... It bans every political sign on a home's lawn, every balloon emblazoned with "Happy Birthday" for a party in the back yard, every "Merry Christmas" banner draped over the front door in December, and every "Open" sign in the door or any shop near an overpass. These prohibitions apply whether or not the sign is large enough to attract drivers' attention.
B. Evidence Specific to 100-foot Buffer Zone Provision
On remand, defendant filed two, additional declarations in support of its renewed motion for summary judgment. Brent P. Smith, who served as outside counsel for the Town of Campbell and assisted in preparing and reviewing the Ordinance, provided the first declaration. (Smith Decl. (dkt. #173).) Smith represents that the 100-foot buffer zone addendum was added "to prevent protestors from skirting the ordinance and standing within close proximity to the overpass to display signs." (Id. at ¶ 1.) "If a buffer zone was not added to the Ordinance," Smith further explains, "the concern was that protestors could still cause traffic safety issues in an area where traffic was merging and exiting the interstate." (Id. at ¶ 2.) Current Chief of the Town of Campbell Police Department, Andrew Gavrilos, provided the second declaration. After examining the Bainbridge Street overpass and surrounding properties referenced in the 7th Circuit opinion, Gavrilos determined that "large portions" of the two residential properties falling within the radius of the 100-foot buffer zone were not visible from the highway due to foliage and "slightly elevated topography. (Gavarilos Decl. (dkt. #174) ¶¶ 1-2.) As such, these portions of the properties would not fall within the ambit of the statute.
In their own motion for summary judgment, plaintiffs introduced no additional evidence, but rather argued that defendants' declarations were inadmissible, while again arguing that § 912.2(2) was not narrowly tailored.
OPINION
To prevail on a motion for summary judgment, the moving party must show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court considers all facts and draws inferences in the light most favorable to the nonmoving party when ruling on a motion for summary judgment. Anderson v. Liberty Lobby, Inc.,
I. Plaintiff's Motion to Strike Defendant's Declarations
In their post-remand motions, plaintiffs argue that the inclusion of extra evidence - Smith's and Gavrilos' declarations -- is not permitted because discovery had already been closed. (Pls.' Opp'n (dkt. #182) 5-6.) However, the Seventh Circuit noted the lack of a fully developed record with regard to the 100-foot buffer provision, seemingly inviting exactly the kind of evidence offered by the defendant on remand. See Luce ,
Plaintiffs also argue that information contained in defendant's declarations is inadmissible because it contradicts testimony previously provided in earlier depositions. (Pls.' Opp'n (dkt. #182) 6-8.) Specifically, plaintiffs point to Town Chairperson Scott Johnson's testimony regarding why a 100-foot buffer zone was chosen rather than a smaller area. (Id. ) Johnson stated that he "would not say that there was anything specific about that hundred feet. And that's typical of an ordinance. We do not break down every single word in it when we describe an ordinance." (Pls.' PFOFs (dkt. #76) ¶ 85 (citing Johnson 30(b)(6) Depo. (dkt. #58) 42).) First, this statement does not conflict with any averments in the Smith and Gavrilos declarations. Neither Smith nor Gavrilos asserted that there was a specific reason why a 100-foot radius was chosen; they only referred to the general need for a buffer zone. Smith's assertion that the buffer zone provision was added to address safety concerns is consistent with Johnson's statement that there was nevertheless "no particular reason" why an 100-foot buffer was chosen as opposed to some other distance. Second, since any arguable inconsistency is construed against defendant at summary judgment, plaintiffs fail to point out any prejudice to consideration of the additional declarations. Third, plaintiffs were free to seek discovery to explore any inconsistency, if they wished. Having chosen not to do so, they have failed to provide any reason why the court should not consider these declarations with respect to the parties' cross-motions for summary judgment.
II. Challenge to 100-Foot Buffer Zone Provision
As the court explained in its prior opinion on the parties' orginal summary judgment motions, a municipality may regulate the time, place, and manner of First Amendment expression, provided that the regulation (1) is content-neutral, (2) is narrowly tailored to serve a significant government interest, and (3) leaves open ample alternative channels of communication. Perry Educ. Ass'n v. Perry Local Educators' Ass'n ,
Narrow tailoring does not require that an ordinance be the least restrictive method for achieving the government's goal. Weinberg v. City of Chi. ,
Here, defendant puts forth evidence that a buffer zone was added out of concern that protestors could skirt the ordinance by standing "within close proximity to the overpass to display signs" in a manner that would raise the same, legitimate traffic safety concerns giving rise to restrictions on the Town's overpasses. (Smith Decl. (dkt. #173) ¶¶ 1, 2.) Defendant, however, stops short of providing any explanation for a 100-foot buffer zone. Indeed, as plaintiffs noted, the Town Board Chairperson previously conceded that there was no underlying reason for choosing a 100-foot parameter, rather than a smaller area. While the court credits the Town's concern about signage immediately off of the overpass still causing traffic safety issues, the lack of any objective evidence showing that the full 100-foot buffer zone serves that interest, even after being given an additional opportunity to present it, dooms this provision.
Moreover, as the Seventh Circuit explained in its opinion and order, the buffer zone includes residential property, thus restricting the First Amendment rights of those property owners as well.
ORDER
IT IS ORDERED that:
1) Defendant Town of Campbell's motion for summary judgment (dkt. #170) is DENIED.
*8522) Plaintiffs Gregory Luce and Nicholas Newman's motion for summary judgment (dkt. #175) is GRANTED.
3) Plaintiffs' motion to strike declarations and proposed findings of fact (dkt. #177) is DENIED.
4) Defendant is permanently ENJOINED from enforcing the Town of Campell, Wisconsin, Ordinance 912.2(2).
5) The clerk is DIRECTED to enter judgment in favor of plaintiffs enjoining the enforcement of the buffer zone and close this case.
Unless otherwise noted, the court finds the following facts material and undisputed.
In this case, the evidence indicated that two residential properties in particular fell within the 100-foot buffer zone,
As the Seventh Circuit's opinion suggests, plaintiffs appear to have standing to challenge the Ordinance based on a non-party landowner's First Amendment rights. See Broadrick v. Oklahoma ,
The court expresses no opinion as to the constitutionality of a more narrowly tailored buffer zone based on objective evidence as to the necessary distance to avoid the risk of driver distraction and accommodating the rights of private property owners.
Reference
- Full Case Name
- Gregory LUCE and Nicholas Newman v. TOWN OF CAMPBELL WISCONSIN
- Status
- Published